04/01/2017 | Dee Yingst
Reasonable accommodation under the ADA: When does it stop being reasonable?
A court in the great state of New York recently ruled in favor a pharmacy that terminated a pharmacist because he was unable to administer vaccinations, which is considered an essential function of his job. One of the reasonable accommodations that he claims could have been offered to him (but wasn't) was that someone else could take on that function of his job (there were three other suggestions as well). Interesting, yes? This brings us to an important question:
What is a "reasonable accommodation" and when does it stop being reasonable?
(The case, Stevens v. Rite Aid, was just decided on March 21st in favor of Rite Aid on appeal. If you're interested, you can read it here.)
Let's get a little background.
The Americans with Disabilities Act or ADA, is designed to ensure equal opportunity for people with disabilities. Reasonable accommodation rules are found in Title I of the ADA. (If you're up for a little light reading, you can check them out for yourself here.)
Simply put, the ADA prohibits discrimination in employment against a qualified individual on the basis of his/her disability. Note I said qualified individual; this means the individual must be otherwise qualified for the job they are currently doing or hoping to be hired to do. Here's how the statute puts it:
"Qualified individual. - The term "qualified individual" means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential..."
So the first question to ask is whether the employee, with or without the disability, is qualified for the job. The law and the courts give a fair amount of consideration to the employer when determining what functions of a job are essential. This is where you want to be certain you have a well written job description that outlines which functions are essential to the performance of the position. You'll want to make sure you get this right.
[In some cases, before you even discuss the merits of the request you'll need to determine if the medical condition meets the definition of disability under the ADA. There are conditions for which it's pretty clear, but there are also things that aren't so clear. Depending on the circumstances, this can get a little complicated. The EEOC does define what they consider to be a disability at the link above but if you're really not sure I would advise you put a call in to your attorney.]
Now you need to review the request: with what is the employee requesting assistance? What type of accommodation is the employee requesting? Will the accommodation allow the employee to perform all of the essential functions of the job? If the accommodation is something like asking that an essential function be done by someone else, then go back to the definition of qualified individual. Remember, the individual has to be able to perform the essential functions of the job in order to be considered to a qualified individual.
So assuming the employee is a qualified individual and the condition meets the definition of disability, next you'll need to determine whether the accommodation requested is reasonable. Here's how the ADA defines reasonable:
"Reasonable accommodation. - The term "reasonable accommodation" may include-
The EEOC does a great job of providing information on types of accommodations and answers many common questions in their Enforcement Guidance. For instance, here's how the EEOC explains job restructuring as an accommodation:
"Job Restructuring - Job restructuring includes modifications such as:
An employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes." (I added the bold for emphasis because I think this is a really important point.)
Sometimes the accommodation is a relatively simple fix (like allowing an employee with lupus who is in a standing, stationary job like a cashier to have use of a stool) other times the result is much more complicated, and sometimes the requested accommodation just cannot be done because it's either a hardship for the employer or it's not really a reasonable accommodation.
The most important thing for employers to remember is that you must engage in an interactive process with disabled employees in need of an accommodation.
Even if you're not sure how the accommodation will be possible or if you have no idea what kind of accommodation to offer, it's very important that:
Some of these situations are relatively simple but some can get very complex – don't be afraid to call in reinforcements (aka a good labor attorney) for the tricky ones.